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33
Policy • Vol. 31 No. 1 • Autumn 2015
Augusto ZimmermANN
reinforced by the strong insistence of the powerful
Islamic Council of Victoria upon the enactment of
Victoria’s RRTA.
While the majority of Muslims living in Western
democracies are law-abiding citizens, following
a non-literalist version of their religion, there is
now a widespread perception that many Western
Muslims believe that blasphemers deserve some
form of punishment.
10
Across the Muslim world
accusations of insulting the Islamic faith are
systematically dealt with by means of death threats,
imprisonment, beatings, and the death penalty. In
Muslim-majority countries, “religious persecution is
reported in 100 percent of cases.” Indeed, “religious
persecution is not only more prevalent in Muslim-
majority countries, but it also generally occurs at a
more severe level.”
11
Of course, religious extremists living in
Western democracies must find different ways to
use our legal system to punish those who offend
their beliefs. Regrettably, they find in religious
vilification laws a suitable mechanism to strike fear
in the hearts of the “enemies of the faith.” Indeed,
one of the greatest ironies of vilification laws is that
their chief beneficiaries are a small but vocal group
of religious extremists, although it is not clear why
such people should merit statutory protection from
severe criticism: surely the contrary is required.
Some of their religious beliefs are deeply disturbing.
For example, a Muslim cleric from Melbourne has
notoriously declared that male Muslims should have
the right, according to the legal dictates of their
religion, to hit and force sex upon their disobedient
wives.
12
Although such remarks deserve our
strongest possible condemnation, even the slightest
criticism of abhorrent statements may result in an
individual being dragged into a secular court and
charged with religious vilification.
The Unconstitutionality of Religious
Vilification Laws
Whereas the Australian Constitution does not
contain a comprehensive declaration of human
rights, the High Court has found it to contain a
few implied rights. Among these implied rights is
the right to freedom of political communication,
which the court declared protects insults, abuse,
and ridicule. The court deemed these means of
communication as legitimate parts of political
discussion.
13
Religion is rarely simply a private and personal
matter. The very nature of religious speech
is often intertwined with “political opinions,
perspectives, philosophies and practices.”
14 As such,
religiously inspired speech must be constitutionally
protected if sufficiently connected with politics.
“Law which prohibits religious vilification will
infringe the implied right to freedom of political
communication.”
15
In other words, Australians are constitutionally
entitled to criticise strongly and ultimately to reject
any religious idea. They have the constitutional
right to openly manifest their opinion as to
why they might regard any aspect of a particular
religious belief as ultimately mendacious, retrograde,
and mindless. Otherwise, are we willing to create
in this nation the same crime of blasphemy that
the Organization of the Islamic Conference (OIC)
demanded when it passed at the United Nations,
in 2009, a motion that prohibits defaming religion
and imposing strict limits on freedom of expression
in the religious domain?
The OIC basically wants relevant U.N. human
rights conventions to be rewritten so as to ensure
that no one is able to invoke freedom of speech
when criticising a religion. Furthermore, it wants
conventions banning racism to also encompass
insults to religion. Curiously, that is precisely what
the Racial and Religious Tolerance Act (2001)
in Victoria does. It rests on precisely the same
misguided idea of linking criticism of religion
with racism.
Indeed, the Victorian legislation aims at
preventing instances of either religious or racial
vilification, thus applying to religion the same
formulations which are applied to race.
16 Of course,
linking religion with racism is problematic because,
in contrast to racial issues, where one finds no
questions of true or false, “religions inevitably make
competing and often incompatible claims about the
Religion is rarely simply a private and
personal matter. As such, religiously inspired
speech must be constitutionally protected.